Employees start looking for an overtime attorney when they are fed up not receiving overtime for all hours worked, when they are about to leave their job, or once they have already left. Due to statutes of limitation it is not a good idea to wait until a job is over to sue for overtime. It is illegal to retaliate against an employee if they inquire why overtime has not been paid, or they sue for overtime. Employees who are fired for asking about overtime, or pursuing a case for overtime can sue for wrongful termination. However, many cases exist in which employees use lawyers to obtain past due overtime while the employee is still employed. There are many rules concerning overtime. Without a lawyer employees are ill-advised to try to determine how much they are owed, or whether they are even entitled to overtime.
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Issues in determining whether overtime is owed include:
Exempt vs. Non-Exempt Job Duties and whether more than 50% of the job is spent on exempt work
Whether a work day is 8, 10, or 12 hours
What job the employee has
What the employer’s reasonable, realistic expectations of the job are
How much money the employee is paid
Whether the employee earns bonuses
Whether the employee earns piece rates
What industry the employee works in
When the employer’s business day has been defined to start and end (which most employees are never told)
If the employee is on-call and those hours should be counted as hours worked
How many consecutive days without a day off has the employee been forced to work?
Has the employee been paid their normal rate of pay for the overtime hours worked?
Was the employee paid cash for the overtime hours, and at what rate?
Is the employee supposed to be paid prevailing wage, and if so is overtime being paid at that rate?
Did the employee sign an alternative work week agreement, and is it valid?
Employees should sue for overtime if they are owed more than $5,000 in overtime.
Overtime lawsuits are often complex.
They involve one or more of the above issues which employees have generally never heard of.
Get a wage lawyer to help,
When an employee is not paid overtime, besides merely being owed overtime, quite a few additional Labor Code penalties exist. These penalties may include up to 30 days of pay. Second, a $100.00 fine for each paycheck overtime was not correctly itemized, or paid. Third, PAGA penalties exist. These are penalties in which the employee can obtain $50.00 for each violation, for each paycheck. Interest on past due overtime must also be paid. If more than 12 hours are worked in a day double time is owed. Double time is also owed on the 7 consecutive work day if each of the 7 consecutive days were 8 hour days.
Employers who lose lawsuits for overtime pay will have to pay the employee’s reasonable attorney fees and costs. Often times these attorney fees and costs exceed the amount of unpaid overtime. Employers are aware of these facts, and so lawsuits for overtime often settle for more than the mere value of the employee’s unpaid overtime.
When an employee has not been paid overtime, in addition to their overtime wages at one and a half times their typical hourly rate that includes certain bonuses and piece rates if any, a failure to properly pay overtime may lead to:
$100 a paycheck fines
a penalty of up to 30 days of pay including all benefits
multiple PAGA penalties of $50 per statutory violation for a California Labor Code that only provides a remedy for the government to collect
Hours past 12 in a day are due at double time rates
Work on the 7th consecutive day may also be subject to double time
Reasonable attorney fees and costs of suit
Employees should sue for overtime if they are owed more than $5,000 in overtime. Remember, with penalties $5,000 in overtime might mean the employer owes $12,000 or more. Small overtime disputes for total damages of $5,000-$20,000 should be capable of being negotiated without extensive litigation.
If an employee is only owed a few thousand for overtime, and other employees were subjected to the same overtime abuse, the Employment Lawyers Group might take the lawsuit as a group lawsuit, Private Attorney General (PAGA) action, or class action. The employee who agrees to act as the class representative might receive a service award. Service awards are partially intended to compensate the class representative for the time they spend acting as a class representative. The court must approve this request for compensation for acting as a class representative. The Employment Lawyers Groups has not had much trouble in getting courts to agree to service awards of $5,000 for multiple employees who agree to represent a class of employees suing for wage theft. Likewise, $3,000 service awards for multiple employees have been obtained. There are, however, examples of $10,000 and $15,000 service awards for being a class representative, but they are on the high side.
If the employee is a present employee of the company they are suing, it is illegal to retaliate against them for bringing the lawsuit. The larger the group is whom sues, the stronger the case, and the harder for an employer to even consider retaliation. Luckily, the Employment Lawyers Group has never had a situation where they had to sue the employer for retaliation after a lawsuit was filed for unpaid overtime.
The Employment Lawyers Group has recovered $50,000 to approximately $275,000 for a single employee’s overtime claims. Some overtime claims are large. However, every case is unique to its own facts so this is not a guarantee nor prediction of what might happen on a new overtime case.